DHS Seeks Public Comment on Public Charge Rulemaking

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The U.S. Department of Homeland Security (DHS) has issued an Advanced Notice of Proposed Rulemaking (ANPRM) for the purpose of seeking public comment and gathering data related to defining the term “public charge” for admissibility purposes. Under the Immigration and Nationality Act, a noncitizen who is likely to become a public charge is generally inadmissible to the United States and ineligible to become a lawful permanent resident. The public comment period is open for 60 days, beginning Monday, Aug. 23, 2021, and closing Oct. 22, 2021.

DHS is requesting public comment on a number of factors, including how DHS should define the term “public charge,” which public benefits DHS should consider relevant to the public charge inadmissibility determination, and how DHS should assess the mandatory statutory factors when determining whether a noncitizen is likely to become a public charge, among other matters. 

The ANPRM does not change how USCIS makes public charge inadmissibility determinations. Until DHS completes the rulemaking process and implements new regulations, USCIS will continue to apply the public charge inadmissibility statute consistent with the 1999 Interim Field Guidance. Under this guidance, USCIS does not consider a person’s receipt of Medicaid (except for Medicaid for long-term institutionalization), public housing, or Supplemental Nutrition Assistance Program benefits and other nutrition assistance as part of the public charge inadmissibility determination. Vaccinations or medical treatment for COVID-19 also are not considered for public charge purposes.

The virtual public listening sessions (which will be opportunities for the public to speak directly to DHS on the questions raised in this ANPRM) will be held on—

  • September 14, 2021 at 2:00 pm ET: Listening Session for the General Public.

  • October 5, 2021 at 2:00 pm ET: State, Territorial, Local, and Tribal Benefits Granting Agencies and Nonprofit Organizations Only.

More information about registering for these public listening session and for submitting comments for DHS consideration can be found under the “Public Participation” section of the ANPRM, which can be found here.